Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Thomas Mackie v. The Town of Edinburgh
Date: 6 November 1711
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Thomas Mackie, a Popish priest, being apprehended, and their mass-vestments, altars, and crucifixes, being found in his house, the magistrates imprisoned him; and, on a probation, ordained him to remove out of Britain betwixt and a prefixed day; of which sentence he presented a bill of suspension, on thir reasons: lmo, That the town were not competent judges to such an extensive penalty; for they could only banish out of their own liberties and jurisdiction, and extra territoriumjus dicenti impune non paretur. And by the Acts of Parliament against seminary priests, trafficking papists, and Jesuits, they are only accountable to the Privy Council and Criminal Lords of Justiciary; and not obliged to answer to inferior courts. 2do, He was not taken saying mass; and the clothes and ornaments were not his, but belong to the Lady Seaforth; neither can it be proven that he is a priest, but has lived these many years in Edinburgh, without giving offence to the government or any others. 3tio, The libel against him was not proven; for all the witnesses adduced were the constables, and a servant woman in the house where he was seized. Now the constables are inhabile; for they have a premium and reward for their discovery; and so are parties that can tine or win. And, as to the woman, she is most incompetent in a matter that dips so near to treason.
Answered for the Town,—That they were sufficiently empowered to banish him out of Scotland, by the Queen's late proclamation against Papists, in August 1709; whereby she requires the Justices of Peace, and all her other Judges, to put the laws against Popish priests punctually to execution: and it is the interest of our religion how many judicatories be empowered to execute these laws; especially seeing the Privy Council is now suppressed. 2do, It is not pretended he was taken in the act of saying mass, for that is capital by our law; but only that he is a seminary priest; and which they need not refer to his oath, because, by dispensation, they have express allowance to swear, with this mental reservation, that they are not priests, meaning they are not priests of Baal or of Jupiter; and this they call an innocent invention, for easing their oppressed consciences: but they use a short process, by offering him the test and formula against popery, ingrossed in the Act of Parliament 1701; and which he refusing to sign, it is probatio probata against him. As to the third, about the inhability of the witnesses,—if the constables were rejected, this crime could never be proven; and they being public officers of justice, whatever share befal them, none can be fitter. And, as to the woman, in latent cases et ubi est penuria testium, they are every day received.
The Lords repelled the reasons of suspension in respect of the answers; and ordained him to enact himself to remove, betwixt and a day, out of the kingdom; and, in case of refusal, to be imprisoned till a ship was ready to transport him.
